Inheritance, Poverty, And Disability
Content
This article was downloaded by: [1.9.46.41]
On: 17 November 2014, At: 21:19
Publisher: Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered
office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
Disability & Society
Publication details, including instructions for authors and
subscription information:
http://www.tandfonline.com/loi/cdso20
Inheritance, poverty, and disability
a
b
Nora Ellen Groce , Jillian London & Michael Ashley Stein
c
a
Leonard Cheshire Disability and Inclusive Development Centre,
Department of Epidemiology and Public Health, University College
London, London, UK
b
Havard Law School, Cambridge, MA, USA
c
Harvard Law Project on Disability, Harvard Law School,
Cambridge, MA, USA
Published online: 14 Nov 2014.
To cite this article: Nora Ellen Groce, Jillian London & Michael Ashley Stein (2014) Inheritance,
poverty, and disability, Disability & Society, 29:10, 1554-1568, DOI: 10.1080/09687599.2014.969831
To link to this article: http://dx.doi.org/10.1080/09687599.2014.969831
PLEASE SCROLL DOWN FOR ARTICLE
Taylor & Francis makes every effort to ensure the accuracy of all the information (the
“Content”) contained in the publications on our platform. Taylor & Francis, our agents,
and our licensors make no representations or warranties whatsoever as to the accuracy,
completeness, or suitability for any purpose of the Content. Versions of published
Taylor & Francis and Routledge Open articles and Taylor & Francis and Routledge Open
Select articles posted to institutional or subject repositories or any other third-party
website are without warranty from Taylor & Francis of any kind, either expressed
or implied, including, but not limited to, warranties of merchantability, fitness for a
particular purpose, or non-infringement. Any opinions and views expressed in this article
are the opinions and views of the authors, and are not the views of or endorsed by
Taylor & Francis. The accuracy of the Content should not be relied upon and should be
independently verified with primary sources of information. Taylor & Francis shall not be
liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages,
and other liabilities whatsoever or howsoever caused arising directly or indirectly in
connection with, in relation to or arising out of the use of the Content.
This article may be used for research, teaching, and private study purposes. Terms &
Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions
Downloaded by [1.9.46.41] at 21:19 17 November 2014
It is essential that you check the license status of any given Open and Open
Select article to confirm conditions of access and use.
Disability & Society, 2014
Vol. 29, No. 10, 1554–1568, http://dx.doi.org/10.1080/09687599.2014.969831
Inheritance, poverty, and disability
Nora Ellen Grocea*, Jillian Londonb and Michael Ashley Steinc
a
Leonard Cheshire Disability and Inclusive Development Centre, Department of
Epidemiology and Public Health, University College London, London, UK; bHavard Law
School, Cambridge, MA, USA; cHarvard Law Project on Disability, Harvard Law School,
Cambridge, MA, USA
Downloaded by [1.9.46.41] at 21:19 17 November 2014
(Received 16 September 2013; final version received 19 September 2014)
Inheritance is a significant means of transferring wealth from one generation to
the next, and therefore increasingly attracts attention from researchers and policy-makers working on intergenerational and multidimensional poverty. However, until now disabled persons have been overlooked in these discussions. This
oversight is particularly unfortunate because, as a group, the estimated one billion people with disabilities (some 15% of the world’s population) are among
the poorest and most marginalized of the global population. Over the past decade, a small but growing literature has examined the recursive connections
between poverty and disability throughout the developing world. In this paper,
we argue that disabled individuals are routinely denied inheritance rights in
many low-income and middle-income countries, and that this is a significant and
largely unrecognized contributor to their indigence. The denial of inheritance is
both a social justice issue and a practice that can no longer be overlooked if
disabled persons are to be brought into the development mainstream.
Keywords: inheritance; disability; poverty; international development; disabled
women; dowry; bridewealth
Points of interest
The link between disability, poverty, and inheritance is an area that has as yet
been wholly unexplored.
Inheritance rights have been given passing mention by a handful of disability
and development studies and reports, but there has been little research that
specifically focuses on inheritance practices and disability.
Making the legal systems – traditional and formal – accessible to disabled persons is crucial to ensuring they can effectively assert their claims to inheritance.
Disabled People’s Organisations and mainstream development organisations
must consider inheritance rights of disabled people if poverty among persons
with disabilities is to be realistically addressed.
Disabled women are at increased risk of being denied inheritance rights and this
is a contributing factor to their increased risk of greater poverty.
The most important finding from this research is the need to further explore the
*Corresponding author. Email: [email protected]
© 2014 The Author(s). Published by Taylor & Francis.
This is an Open Access article. Non-commercial re-use, distribution, and reproduction in any medium, provided the original
work is properly attributed, cited, and is not altered, transformed, or built upon in any way, is permitted. The moral rights of
the named author(s) have been asserted.
Disability & Society
1555
Downloaded by [1.9.46.41] at 21:19 17 November 2014
extent and patterns by which persons with disabilities are being denied their
right to inherit through formal, customary, and informal practices.
Introduction
Persons with disabilities are among the world’s poorest and most marginalized individuals. They face stigma, prejudice, and social isolation, and often lack the education, social support networks, and legal right to appeal injustices at the family,
community, or national level (Department for International Development 2000;
World Health Organization [WHO]/World Bank 2011). Over the past decade, a
small but growing literature has begun to examine links between poverty and disability (Groce et al. 2011; Parnes et al. 2009; Yeo 2001). These links are of note not
only because they are strong, but also because over one billion people worldwide
(15% of the global population) live with disability and one in four households has a
disabled member (WHO/World Bank 2011).
A major catalyst for increasing attention is the UN Convention on the Rights of
Persons with Disabilities (CRPD), which in the Preamble, Article 28, and Article 38
specifically addresses poverty reduction and establishes the equal inclusion of disabled persons in all development and global health efforts as a right (United Nations
2006). Article 12 specifically cites the right to own and inherit property and ensures
that disabled persons are not arbitrarily deprived of their property. The CRPD in turn
has led to new initiatives to incorporate people with disabilities into current and
future development efforts (United Nations 2011; also UN High Level Meetings in
2014). UN agencies, and bilateral and multilateral donor agencies increasingly recognize the necessity of including disability issues in mainstream poverty reduction
efforts (International Development Committee 2014).
Issues such as social inclusion and equity, access to education, employment, microfinance, and social protection have been examined as important components in
understanding cycles of poverty among disabled persons (Braithwaite and Mont
2010; Yeo 2001). This research increasingly shows that the issue of poverty among
disabled persons is more complex and nuanced than originally thought (Barron and
Ncube 2010; Groce et al. 2011; Sen 2009).
However, little attention has been directed to the structural nature of trans-generational poverty, nor the manner in which access to family and household assets
affects individuals with disabilities over the course of their lifetimes. Strikingly little
is known about inheritance rights for disabled persons in low-income and middleincome countries. Almost wholly unaddressed in the disability literatures, this is also
overlooked in the development and social justice literatures. This lack of attention is
perhaps understandable: only recently have inheritance practices, particularly as they
relate to women, become part of the global discourse on poverty and development,
and much remains poorly understood (Cooper 2010a, 2010b; Doss et al. 2011). Still
largely unexplored and beyond the scope of this paper are yet broader questions
about how inheritance drives issues related to continuing inequities in access to
resources framed by gender, class and ethnicity, rural verses urban residence and
high verses low-income and middle-income countries across the generations.
Researchers of disability and poverty in low-income and middle-income countries routinely hear anecdotes about how disabled persons are passed over when
1556
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
land, property, or money is passed down within families. Take, for example, the
38 year-old Nigerian woman disabled by polio who had worked side by side with
her non-disabled husband for 18 years establishing a small shop selling tobacco,
bananas, and lottery tickets. Within a week of her husband’s death, his brother, with
the backing of her husband’s own parents, had taken the shop and thrown her and
her three children out on the streets, commenting that his brother should not have
‘married a cripple’ in the first place.1 In Tanzania, a deaf son found that while he
and each of his six siblings had been left one-sixteenth of an acre by his father, his
siblings had decided that he ‘did not need’ land because he ‘could beg to earn the
same amount’. A lifelong farmer, he now lives on the streets of Dar es Salaam
washing cars and asking for hand-outs.
This article reviews what is and is not known about inheritance and disability
and discusses why this is an important – and currently missing component – in
efforts to understand and sever the links between poverty and disability.
Methodology
We began with a comprehensive desk review identifying existing evidence on inheritance, disability, and poverty, searching the following social science, international
development, and legal databases:
Abstracts in Anthropology
Google Scholar
EconLit
Family and Society Studies
IBBS
Index of Foreign Legal Periodicals
JSTOR
JSTOR Anthropology
Legal Journals Index
PubMed
PsychInfo
SSCI
Web of Science
Women’s Studies International
Our searches included combinations of the terms ‘disabled persons’, ‘disability’,
‘handicap’, ‘inheritance’, ‘comparative inheritance’, ‘succession’, ‘poverty’, ‘customary law’, and ‘discrimination’. As we were interested in multiple ways in which
property and assets are transferred, our search also included ‘dowry’ and ‘bridewealth’. Because gender often compounds disability issues, the terms ‘gender’ and
‘women’ were also searched. We also conducted a general Google search of disability and inheritance, and searched Nexis UK for websites, newspapers, case law, and
non-peer-reviewed journal articles and books. Finally, all major disability journals
were searched for these terms.
Because we focused on disability and poverty in low-income and middle-income
countries, results that focused on disability and inheritance in the developed world
were excluded, although we hope to return to this in future.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1557
Findings
Overview
Inheritance is a critical means of transferring wealth between generations. It includes
the transfer of property and other assets from one’s ancestors at various points in the
lifecycle: birth, death, marriage (often involving dowry or bridewealth), and retirement from work (Cooper 2010a). Inheritance patterns are connected to a society’s
kinship organization, social structure, and ideas about freedom, wealth, and equality
(Cooper 2010a; Doss et al. 2011; Hacker 2010; La Ferrara 2007; Sen 2009). Thus,
inheritance is considered both an economic and a social justice issue. Inequity in the
distribution of inheritance often reflects existing social inequities, leaving those
denied equal inheritance not only poorer than other family members or destitute, but
also with fewer rights to decision-making within the family and community (Cooper
2010a).
Inheritance can be either testate via a will or intestate when no will exists and
property devolves according to a society’s governing inheritance laws. Inheritance
regimes vary widely, and in the developing world often involve interplay between
national and customary law. A state can affect inheritance practices by limiting testamentary freedom (e.g. the amount of property an individual is allowed) and through
intestate inheritance laws that establish who can inherit property in the absence of a
will (Deere and Doss 2006). A state can also affect inheritance practices by determining whether or not to respect the customary laws of ethnic or minority communities living within its borders.
Inheritance regimes are either bilineal (property inherited through male and
female lines) or unilineal (through only the male or female line) (Cooper 2010a;
Hacker 2010; La Ferrara 2011; Nauck 2010). Much of the developed world has bilineal inheritance, while most of the developing world maintains unilineal inheritance systems. Two unilineal forms dominate. In matrilineal systems, property
devolves along the mother’s ancestral line so that a man’s heirs are his sister’s children. In patrilineal systems, property devolves along the father’s ancestral line, usually to a man’s siblings and/or children (Cooper 2010a; Hacker 2010; La Ferrara
2011; Nauck 2010).
Whether a community has a patrilineal or matrilineal inheritance system is generally linked to whether their wider kinship system is matrilineal or patrilineal. However, as Cooper (2010a) notes, inheritance practices do not always follow matrilineal
or patrilineal patterns, since inheritance decisions are often made as a result of
‘unique personal relationships’ whereby individuals give land and other assets to
someone close to them who is not within the society’s traditional line of descent.
This can be achieved through inter vivos transfers (where individuals transfer property to an heir during their lifetime) or through a will (although the will is not
always followed by family and community members) (Cooper 2010a; Hacker 2010;
La Ferrara 2011; Nauck 2010).
Religion plays a significant role. Under Islamic law, which governs practices in
modern Muslim states, much of India, and many sub-Saharan African tribal groups,
only one-third of an estate can be willed freely, with the remainder divided between
the deceased’s children and other heirs (Deere and Doss 2006). Daughters are entitled to one-half of the sons’ share; widows are entitled to one-half of what widowers
receive (Hacker 2010). In Hindu inheritance law, which governs most of India and
is present in much of sub-Saharan Africa, two schools exist. Under the Dayabhaga
1558
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
School, a man can will all of his property as he pleases. Under the Mitakshara
School, a man’s property is divided into personal property and joint ancestral property (‘coparceny’). While a man may will his personal property as he sees fit, he is
not allowed to will joint ancestral property, which belongs equally to himself and
his sons at birth. Daughters do not inherit ancestral property (Sivaramayya 1997).
While the Hindu Succession Act of 1956 gives Indian daughters and sons equal
rights to personal property, it did not affect distribution of ancestral property. Consequently, there is still unequal inheritance between sons and daughters in Mitakshara
Hindu Law (Carroll 1991).
There thus exists a wide variety of inheritance practices that affect what property
can be distributed and to whom. As discussed below, these practices often involve
the interplay of religious, state, community, and family laws and traditions, as well
as personal decisions. Any study of inheritance among disabled persons must keep
in mind the complexity of inheritance systems and the multitude of actors involved.
Inheritance and poverty
Linkages between inheritance and poverty have received increasing attention within
development, particularly in relation to women’s poverty and empowerment
(Agarwal 1994; Bird 2007; Cooper 2010a, 2010b; Deere and Doss 2006; Doss et al.
2011). In her comprehensive review of inheritance and inter-generational poverty in
sub-Saharan Africa, Cooper notes that:
inheritance is a major means for the transfer, or exclusion from the transfer, of adults’
accumulated physical capital. As such, it can have positive or negative effects on poverty status over the life course. Inheritance events can either be boons of property accumulation or they can strip people of their previous security of access to assets. (Cooper
2010a)
Inheritance can provide younger generations with economic independence. Control
over assets can also increase an individual’s productive capacity and help movement
out of poverty (Doss et al. 2011; Sen 2009). Conversely, recent African studies show
that lack of inheritance ‘exacerbates vulnerability’ to chronic, inter-generational poverty (Cooper 2010a).
In the developing world, inheritance is among the rare means for obtaining property and other economic assets. Furthermore, the right to dispose of property gives
individuals a continuing voice in family and community matters, even when ill or
elderly. Those who are denied inheritance, even where only small amounts of property or cash exist, may face destitution. Such ‘property’ can be quite limited – a
bicycle, sewing machine, or cook stove needed to continue self-employment.
Even if assets can be obtained through alternative means, inheritance is often the
major method of obtaining rights to land (Cooper 2010a). This is important because
land is an especially valuable form of property due to its ‘economic, political and
symbolic significance’ (Agarwal 1994, 1456). Control over land allows one to be
self-sustaining, to obtain further wealth through crops, and able to be sold or leased
in times of need. Gender literature evidence indicates increased access to land
improves women’s welfare, productivity, equality, and empowerment (Agarwal
1994). Land also provides a sense of identity, belonging, status, and the right to a
political voice within the community. Land is viewed by many in South Asia as having ‘durability and permanence which no other asset possesses’ (Agarwal 1994).
Disability & Society
1559
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Land is equally important in sub-Saharan Africa, providing ‘food, shelter and economic activities’; a ‘primary source of wealth, social status, and power’ and facilitating access to other critical resources such as water, sanitation, and electricity
(Cooper 2010a).
Inheritance and disability
Given the links between inheritance and poverty, it is important to understand
the connection between disabled persons and inheritance, particularly the wellestablished links between disability and poverty (Department for International
Development 2000; Groce et al. 2011; Mitra, Posarac, and Vick 2011; Parnes et al.
2009; Sen 2009).
Our desk study identified 90 publications in 61 journals, books, websites, and
newspapers for review based on attention to some aspects of inheritance, poverty,
and/or disability. Of these, 42 were selected for in-depth review based on abstracts
and introductions. Notably, we were unable to identify a single study that focused
specifically on inheritance rights and disabled persons in the developing world.
However, enough material was located to conclude that, around the world, disabled
persons are often denied the same inheritance rights enjoyed by others.
Evidence of exclusion of disabled persons from inheritance appears throughout
history – from Roman law it was adopted throughout Europe in the Middle Ages
(Metzler 2011). For example, in the Sachsenspiegel book, containing the legal code
from Medieval Germany, ‘people born “dumb, blind, or lacking hand or foot” could
not inherit under feudal law (Lehnsrecht) but could do so under territorial law
(Landrecht)’ (Dobozy 1999). Buckingham, in her history of disability in India, notes
that in pre-modern India, disabled persons were denied inheritance in the higher levels of Hindu caste society. A dharmasastric text from the fourth century AD ‘listed
“a madman, an idiot, one born blind, and he who is afflicted by an incurable disease” as people who were rendered unable to inherit’ because they were thought
incapable of performing required family rituals (Buckingham 2011). Groce (1985)
cites additional examples of denial of inheritance or primogenitor for deaf persons
in Medieval Europe.
Miles (2002) finds restrictions to inheritance of property in numerous historical
Asian texts. For example, Al-Marghinani’s twelfth-century scholarly commentary on
Islam, the Hedaya, still used among South Asian Muslims, notes that in the Qur’an
(Surah 4, verses 5–6) intellectually disabled persons are prescribed guardianship and
not allowed to control their own property because this would go against their best
interests (Al-Marghinani 1975). Not all Islamic scholars agreed with these prohibitions, however. For example, the legal scholar Abu Hanifa advocated withholding
property of the person with intellectual disabilities only until age 25, arguing that
denying access after this would be inhumane (Al-Marghinani 1975).
Ancient Hindu Law also mentions property and inheritance rights of disabled
persons. They were excluded from inheritance in the eleventh-century Mitakshara
(Miles 1999), and Miles further lists Hindu law books where disability and inheritance were mentioned (Miles 2008). For example, the Minor Law Books Narada
(fourth/fifth century CE) notes exclusion of disabled persons from inheritance but
asserts that they must be maintained and their sons must be allowed to remain inheritors (Jolly 1889). Similar provisions excluding disabled persons from inheritance
but requiring that they be maintained and/or that their sons be allowed to inherit are
Downloaded by [1.9.46.41] at 21:19 17 November 2014
1560
N.E. Groce et al.
found in other texts – for example, Institutes of Vishnu, XV (Jolly 1880, 38–34);
MANU, IX (Hopkins 1995, 201–202); Guatama, XXVIII (Bühler 1897, 43–44);
and Baudhayana, I.2.3 and I.2.4 (Bühler 1882). Interestingly, Miles (2008 citing
Muller 1882) notes that Part II of the ancient Persian Pahlavi Texts asserts that a son
or his wife ‘who is blind in both eyes, or crippled in both feet, or maimed in both
his hands’ is entitled to twice the share of a non-disabled son.
In addition to historical references, a handful of recent articles in the disability and
poverty literature mention inheritance. For example, Yeo asserts that disabled persons
are low priority or excluded from family inheritances (Yeo 2001). Lwanga-Ntale
(2003) and Bird et al. (2004) note that Ugandan customary law prohibits disabled persons from inheriting land. Lwanga-Ntale quotes a group of disabled women, stating
‘a disabled person cannot inherit land. A brother’s child may even be preferred in
inheritance if he is not disabled’ (Lwanga-Ntale 2003, 7). Sultana (2010), studying
disability and the Bangladesh legal system, notes that the Lunacy Act 1912, still
enforced, allows persons with intellectual or mental disabilities to be declared incapable of managing their property; thus, Muslim families governed by this law often keep
disabled individuals from claiming their share of family property. Furthermore, the
Bangladeshi Hindu Inheritance (Removal of Disabilities) Act 1928, likewise still in
force, states that no person governed by Hindu Law with any disease, deformity, or
physical or mental defect may be excluded from their inheritance or share in joint
family property, except a person born ‘a lunatic or idiot’ (Sultana 2010).
This last point shows that exclusion from inheritance may depend on the type of
disability and the socio-cultural perceptions about that disability. Persons with intellectual or mental health disabilities, for example, may face greater exclusion because
they are considered incapable of looking after property. This may be particularly relevant in the societies, which place significant importance on communal ancestral
property. As Yeo notes, ‘where there are limited resources it may be seen as economically irresponsible to give an equal share of resources to a disabled child who
is perceived as unlikely to be able to provide for the family in the future’ (2001, 9).
Nor are such disability-specific concerns confined to communal inheritance. For
example, people who are deaf may have difficulty understanding and asserting their
claims when those around them are unable to speak sign language. Because few
courts in developing countries provide sign-language interpreters, poor deaf individuals are often unable to afford interpreters themselves.
Notably, while disabled men may have property rights, disabled women often do
not. Furthermore, given that all women in Nepal (disabled or not) are denied the
right to equal inheritance with men, the fact that many women with disabilities do
not marry leaves them without any access to property rights even through husbands
(Dhungana 2006).
Interestingly, evidence does not support the conclusion that all societies follow
discriminatory inheritance practices. In her study on disability among the Kenyan
Massai, for example, Talle (1995) notes that the Massai moral code requires disabled
children to be treated equally, including in marriage and inheritance of their parents’
livestock. Given the lack of research into inheritance and disability among ethnic
and minority communities, other groups may share similar ideas to the Massai,
although no similar reports were found in existing literature.
Our review clearly demonstrates a dearth of research on this subject – aside from
anecdotal references, no accounts were located on gender differences or how persons
with different types of disabilities fare under inheritance practices. The few studies
Disability & Society
1561
Downloaded by [1.9.46.41] at 21:19 17 November 2014
where the links between disability and inheritance are mentioned note the association without providing in-depth discussion of why this occurs or what the lived
experiences are for disabled people thus excluded.
Dowry, bridewealth, and disability
In addition to inheritance that may be received or denied upon a family member’s
death, another important form of ‘inheritance’ occurs during marriage.
The two major forms of wealth transfer during marriage are dowry and bridewealth. As Cooper (2010a) notes, dowry is prevalent across Asia, while bridewealth
is common in sub-Saharan Africa. In the case of dowry, property, money, and/or
other assets are given by the bride’s family to the groom or his family. In the case of
bridewealth, property, money, and/or other assets are given by the groom or his family to the bride’s family (Cooper 2010a).
Some consider dowry a form of pre-mortem inheritance (Goody 1976; Nauck
2010). In many cases, dowry is the only inheritance a woman receives, as she is
ineligible to inherit land and assets through customary or formal law (Carroll 1991;
Schlegel and Eloul 1988). In other cases, dowry forms part of a woman’s inheritance, with the balance transferred on the death of her father and/or mother (Schlegel
and Eloul 1988).
Significantly, however, although many disabled men and women do have relationships, stigma, prejudice, and customary laws make it less likely they will formalize these relationships through marriage (WHO/UNFPA 2009). As Parnes et al.
(2009, 175) note: ‘unlike other women, [women with disabilities] have little chance
to enter a marriage or inherit property that can offer a form of economic security’.
In Nepal, for instance, a society where marriage is the norm for women, 80% of disabled women are unmarried (Dhungana 2006). This lack of formal marriage compounds links between poverty and disability through lack of dowry, bridewealth, or
right to inherit property or resources generated jointly over the course of the relationship.
Even marriage does not ensure equitable treatment for disabled persons. Often
families of disabled persons will be asked to pay a higher dowry or bridewealth for
a marriage partner. Ghai explains that in India, because marriage involves the gifting
of a woman by her father to the groom and his family, and because it is anticipated
that that gift will be ‘perfect’, the family of a disabled girl must often pay a higher
dowry to compensate for the daughter’s so-called imperfections (Ghai 2002). Both
Mehotra (2004) studying disabled women in India and Hosain et al. (2002) in their
disability studies in Bangladesh report disabled girls’ families paying heavy dowries
to secure a marriage. A study of persons with physical disabilities in Dakar provided
similar evidence for bridewealth – obtaining a wife for a disabled son required a
higher than normal bridewealth (Whyte and Ingstad 1995).
Interestingly, although higher bridewealth or dowry can take years to accumulate
there is little study of whether families were willing to pay such fees in order to
marry off their disabled child. The inability to pay a higher dowry or bridewealth
may mean an isolated and lonely adulthood for disabled individuals or permanent
reliance on birth families.
Even if a higher dowry or bridewealth is possible, finding a spouse can be difficult. Disabled women have a more difficult time than disabled men in obtaining
marriage partners (Habib 1995; Rahman and Ahmed 1993; WHO/UNFPA 2009). In
1562
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
some societies, disabled women unable to obtain marriage partners may become
‘part’ of their female family member’s dowry. In the course of fieldwork, one coauthor (N.E.G.) was told by a disabled informant that she herself had been ‘given’
as part of her non-disabled sister’s dowry to her sister’s husband’s family. This family in turn married her to an elderly uncle 50 years her senior to serve as his nurse.
Where polygamous marriages exist it is also common for disabled women to
become junior wives, brought into the household to do housework and childcare
(Groce 1997).
Thus, for women with disabilities an inability to marry or to be the ‘first’ wife
may keep them from obtaining any form of wealth. Furthermore, most or all of a
dowry may not be given to the bride but instead to the groom and his family
(Tambiah et al. 1989). It is thus debatable whether dowry should be considered a form
of inheritance that could assist disabled women in obtaining economic autonomy.
Legal pluralism
Another significant issue is legal pluralism: ‘the coexistence and interaction between
multiple legal orders such as state, customary, religion, project and local laws, all of
which provide bases for claiming property rights’ (Meinzen-Dick and Pradhan 2002, i).
Overlapping systems regarding inheritance often contradict and compete with one
another at the individual and community levels. National laws may not reflect what
occurs in practice. It is not unusual for different parties to appeal to different legal
systems to assert their inheritance claim for the same property (Irianto 2004).
In many countries, statutory law recognizes the primacy of customary law in
inheritance, an issue often considered a matter of family law. This can be disconcerting for minority groups whose statutory rights to equality before the law can be
undermined by customary practices.
Unfortunately, there is little written on customary inheritance laws in relation to
disabled persons. As with the inheritance and development literature in general,
much current research on relationships between customary and statutory inheritance
law relates to women. Cooper observes, for instance, that Botswana, Lesotho,
Ghana, Kenya, Zambia, and Zimbabwe exempt inheritance matters from the genderbased non-discrimination provisions in national laws (Cooper 2010a).
Irianto (2004), studying interactions between state and customary law in Indonesian inheritance court cases, notes that formal Indonesian regulation makes no mention of women having any title to inheritance. This has a devastating impact on the
inheritance rights of women. Customary law in both sub-Saharan Africa and Southeast Asia often discriminates against women, including disabled women, by preventing them from inheriting – or inheriting equally with male family members – from
parents or spouses. Further, much customary law is uncodified, flexible, and changing (Bushbeck 2006; Kameri-Mbote 1995). Formal wills are often unknown or
ignored. For example, in African customary law, inheritance matters will almost
always be intestate (Mwenda, Mumba, and Mvula-Mwenda 2005). These factors
make it relatively easy for family members and chief elders to manipulate customary
laws to keep or take property from women and other vulnerable individuals.
Although some countries now guarantee equal inheritance rights to all by statute,
discriminatory customary law still dominates in practice (Cooper 2010a; Mbatiah
2010; Mwenda, Mumba, and Mvula-Mwenda 2005). Additionally, property-grabbing by family members, although outlawed by the State, is common among
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1563
widows and orphans; disabled persons are also routinely victims and likewise lack
the ability to challenge these practices in courts. Individuals meant to enforce the
law often fail to do so as they frequently benefit from the property-grabbing themselves (Mwenda Mumba, and Mvula-Mwenda 2005).
Vulnerable individuals may find it extremely difficult bypassing family and community leaders to assert their rights within national legal systems. Some are unaware
of their rights. Others may fear retaliation or alienation from family and community
if they resort to non-community-based legal systems. Many women who have questioned traditional inheritance systems or turned to state courts have been threatened,
beaten and face alienation from family and community (Agarwal 1994; Mwenda,
Mumba, and Mvula-Mwenda 2005). Similar alienation and violence might also be
of concern for disabled persons who frequently depend on family for activities of
daily living, and already are at increased risk of violence.
Even if individuals are aware of statutory laws, many prefer using customary
systems because these are more familiar and less expensive (Cooper 2010b). Such
local legal processes may be staffed by a justice who ‘lack[s] strong legal training
and who relies more on conventional wisdom than on rules of evidence and substantive law’ (Mwenda, Mumba, and Mvula-Mwenda 2005).
Finally, even if individuals bring cases before state courts, these courts may still
apply customary law and ‘take personal relations, specific circumstances and backgrounds … into account, not only strict legal rules’ (Bushbeck 2006). An additional
difficulty is that statutory law generally does not recognize polygamous marriages,
leaving women who are second or third wives without any recourse to inheritance
rights. This is particularly relevant to disabled women because, as noted above, they
are more likely to be junior wives.
In communities where there is strong stigma against disability or where disabled
persons are not considered responsible adults, decisions can be made by family,
community leaders, or local justices who believe they are acting in these individuals’
best interests. Also largely unexplored, but the subject of many anecdotes and worth
investigation, are cases where issues of inheritance affect decisions to institutionalize
disabled relatives or threat to do so are used as leverage to gain compliance.
Discussion
Although the literature linking inheritance, poverty, and disability is strikingly thin,
the issues appear to be similar to those already identified between gender and inheritance and we can therefore extrapolate from this existing literature to anticipate difficulties disabled persons face.
On the individual level, many disabled persons are significantly less likely to
obtain an education, and therefore not understand their inheritance rights or how to
access the legal system to assert these rights. Thus, there is an unfortunate paradox
in which they lack education, and resources to assert inheritance rights, while that
very inheritance could enable them to access needed education and resources.
Even where the family and community have the disabled person’s best interests
in mind, they may believe them unable to adequately manage property. Much like
the phenomenon of women relinquishing inheritance rights after being ‘convinced’
that it would be best for all parties (Hacker 2010), it seems likely that many disabled
individuals are pressed to similarly relinquish inheritance rights.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
1564
N.E. Groce et al.
Dependency on others for a place to live, care, and social inclusion may restrict
an individual’s options to object or to question inheritance practices. Disabled persons may also relinquish inheritance rights, believing they are a burden and this is a
way to ‘repay’ others for their care and concern.
Customary and traditional legal systems and practices limit the right of disabled
persons to inherit property and the right to appeal decisions made by other members
of their families and communities regarding division of property. Legal pluralism
means that it is often difficult for disabled persons to know which legal system governs their inheritance rights and makes it relatively easy for families and communities
to ‘forum shop’ for a legal system to deny disabled persons their inheritance rights. In
many states, statutory law excludes customary inheritance practices from non-discrimination clauses, legitimating discriminatory practices. Even in states that do not
create exceptions in national laws for customary inheritance practices, lack of enforcement mechanisms means that communities and families often ignore national law.
An additional barrier at the structural level is that lawyers and judges often lack
knowledge of the recent legal changes (such as the CRPD) or applicable laws that
protect inheritance of disabled persons. Traditional stigma surrounding disability
may make lawyers and judges unlikely to care about supporting inheritance rights
for disabled people.
Furthermore, inaccessible court rooms and legal offices – lacking sign language
interpreters or ramps, for example – provide additional structural barriers. Disabled
persons from rural communities are at even greater disadvantage because of distances to lawyers, judges, and courts linked to national legal systems makes them
even more reliant on the local, customary legal mechanisms.
While it can be argued that the CRPD overrides customary legal systems, this
will not necessarily quickly extend to changes at local or individual levels. The Convention on Elimination of All Forms of Discrimination against Women, adopted by
the United Nations in 1979, has been ratified by 187 countries, yet women still face
discrimination worldwide.
An important consideration for inheritance and disability is the unique situation
of families. While disabled persons must not be discriminated against, legitimate
concerns of families must also be recognized. For instance, someone with an intellectual disability might require support to manage money and assets; similarly,
someone with serious mental health problems might need facilitation to realistically
decide how to spend their inheritance. If an individual needs inheritance for medical
or psychological care or support over a lifetime and is unable to make appropriate
decisions, allowing unregulated control over inheritance could have potentially devastating consequences. Ways in which disabled persons can maintain inheritance
rights while taking into account that some might require help managing their inheritance will require careful consideration and discussion within and beyond the
disability community.
Conclusions
Denial of the right to inherit can deprive disabled persons of existing or anticipated
assets, driving them into poverty. For those already in poverty, inability to inherit is
often a final blow, moving many from poverty to destitution. Nevertheless, this desk
review finds the nature and extent to which inheritance is a contributor to poverty of
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1565
disabled persons is currently largely unrecognized, poorly understood, and largely
conjectural.
This lacuna is not unique to disability. Cooper (2010a), in one of the few comprehensive studies of inheritance and poverty in sub-Saharan Africa, also notes lack
of evidence-based research. Thus, perhaps our most important finding is the need to
further explore – through field studies, case law examination, and discussions with
disabled persons themselves – the extent to which disabled persons are being denied
their inherence rights through formal, customary, and informal practices, and the
implications that this has for their continuing poverty. Study is needed not only on
disability and inheritance in general, but also of barriers due to gender and issues
faced by persons with different types of disabilities.
A solid evidence base would allow identification of where interventions would
be most effective. There are, however, several that can be identified now.
First, countries that currently exempt inheritance from the non-discrimination
clauses of their statutory laws need to reform these laws to conform with the CRPD.
Because most people die intestate (Hacker 2010), reforming statutory law so that
disabled persons are automatically included in distribution of inherited family wealth
could have a profound effect. While reform of customary law is difficult given its
localized and generally uncodified nature, engagement with local leaders may lead
to improvement in customary inheritance practices.
Disabled persons themselves need education on their rights, as well as about
accessing the legal system to effectively assert these rights. Lawyers and judges also
need education about new laws so these can be effectively implemented. Education
within local communities will also be crucial, as family and community members
understand new laws and how these affect their testamentary freedom. Monitoring
by human rights organizations and disabled persons’ organizations is needed to
ensure that rights are upheld.
Additionally, making courts more accessible is crucial to ensuring claims to
inheritance. Providing sign-language interpreters, making courtrooms physically
accessible and providing access to lawyers for disabled persons in rural communities
are examples of how this can be achieved.
Finally, this paper presents a call to disability rights advocates to become
involved in and develop an expertise on inheritance both at the policy and practice
levels. Disabled people should be involved in discussions surrounding research into
inheritance rights, as well as programmes advocating change of laws and practices.
Most importantly, this should be at the forefront of the disability and development
agenda. An exploration into inheritance practices and laws as they relate to disabled
persons is crucial for reducing poverty, improving rights, and creating a more equal
and just system for all.
Acknowledgements
The authors gratefully acknowledge funding from UK Department for International Development through the Cross-Cutting Disability Research Programme to the Leonard Cheshire Disability and Inclusive Development Centre, UCL. They also thank Dr Michael Miles for
additional references and Ellie Cole for manuscript preparation.
Note
1. Anecdotes from research by co-authors (N.E.G., M.A.S.).
1566
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
References
Agarwal, B. 1994. “Gender and Command Over Property: A Critical Gap in Economic Analysis and Policy in South Asia.” World Development 22 (10): 1455–1478.
Al-Marghinani, B. 1975. The Hedaya. 2nd ed. Translated by C. Hamilton. Premier: Lahore.
Barron, R., and J. Ncube, eds. 2010. Poverty and Disability. London: Leonard Cheshire Disability.
Bird, K. 2007. “The Intergenerational Transmission of Poverty: An Overview.” Working
Paper 99. Overseas Development Institute and Chronic Poverty Research Centre.
Bird, K., N. Pratt, T. O’Neill, and V. Bolt. 2004. “Fracture Points in Social Policies for
Chronic Poverty Reduction.” Working Paper 47. Chronic Poverty Research Centre.
Braithwaite, J., and D. Mont. 2010. “Disability and Poverty: A Survey of World Bank Poverty Assessments and Implications”. SP Discussion Paper No. 0805. World Bank.
Buckingham, J. 2011. “Writing Histories of Disability in India: Strategies of Inclusion.” Disability & Society 26 (4): 419–431.
Bühler, G., ed. 1882. Sacred Laws of the Aryas, Part II. Oxford: Clarendon.
Bühler, G., ed. 1897. Sacred Laws of the Aryas, Part I. Oxford: Clarendon.
Bushbeck, K. 2006. “Customary Inheritance Law – Methodological Aspects of Research and
Main Features of Inheritance Traditions.” In Shade of New Leaves: Governance in Traditional Authority, edited by M. Hinz and H. Patemann, 231–246. Berlin: Lit Verlag.
Carroll, L. 1991. “Daughters’ Right of Inheritance in India: A Perspective on the Problem of
Dowry.” Modern Asian Studies 25 (4): 791–809.
Cooper, E. 2010a. “Inheritance and the Intergenerational Transmission of Poverty in SubSaharan Africa: Policy Considerations.” Working Paper 59. Chronic Poverty Research
Centre
Cooper, E. 2010b. “Women and Inheritance in Five Sub-Saharan African Countries: Opportunities and Challenges for Policy and Practice Change.” Paper presented at the ‘Ten Years
of War against Poverty’ conference, Manchester, September 8–10.
Deere, C., and C. Doss. 2006. “Gender and the Distribution of Wealth in Developing Countries.” Research Paper No. 2006/115. United Nations University World Institute for
Development Economics Research
Department for International Development. 2000. Disability, Poverty, and Development. London: DFID.
Dhungana, B. 2006. “Lives of Disabled Women in Nepal: Vulnerability without Support.”
Disability & Society 21 (2): 133–146.
Dobozy, M. 1999. The Saxon Mirror: A Sachsenspiegel of the Fourteenth Century. Philadelphia, PA: University of Pennsylvania Press.
Doss, C., M. Truong, G. Nabanoga, and J. Namaalwa. 2011. “Women, Marriage, and Asset
Inheritance in Uganda.” Working Paper 184. Chronic Poverty Research Centre.
Ghai, A. 2002. “Disabled Women: An Excluded Agenda of Indian Feminism.” Hypatia 17
(3): 49–66.
Goody, J. 1976. “Inheritance, Property and Women: Some Comparative Considerations.” In
Family and Inheritance: Rural Society in Western Europe, edited by J. Goody, J. Thirsk,
and E. Thompson, 1200–1800. Cambridge: Cambridge University.
Groce, N. 1985. Everyone Here Spoke Sign Language: Hereditary Deafness on Martha’s
Vineyard. Cambridge, MA: Harvard University Press.
Groce, N. 1997. “Women with Disability in the Developing World: Arenas for Policy Revision and Programmatic Change.” Journal of Disability Policy Studies 8 (1): 178–193.
Groce, N., M. Kett, R. Lang, and J. F. Trani. 2011. “Disability and Poverty: The Need for a
more Nuanced Understanding of Development Policy and Practice.” Third World Quarterly 32 (8): 1493–1513.
Habib, L. 1995. “Women and Disability Don’t Mix!’: Double Discrimination and Disabled
Women’s Rights.” Gender and Development 3 (2): 49–53.
Hacker, D. 2010. “The Gendered Dimensions of Inheritance: Empirical Food for Legal
Thought.” Journal of Empirical Legal Studies 7 (2): 322–354.
Hopkins, E., ed. 1995. The Ordinances of Manu Translated from Sanskrit. New Delhi: Munshiram Manoharlal.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1567
Hosain, G., D. Atkinson, and P. Underwood. 2002. “Impact of Disability on Quality of Life
of Rural Disabled People in Bangladesh.” Health, Population, and Nutrition 20 (4): 297–
305.
International Development Committee. 2014. Disability and Development: Eleventh Report
of Session 2013-14. London: House of Commons. Accessed May 7. http://www.publica
tions.parliament.uk/pa/cm201314/cmselect/cmintdev/947/947.pdf
Irianto, S. 2004. “Competition and Interaction between State Law and Customary Law in the
Court Room: A Study of Inheritance Cases in Indonesia.” Journal of Legal Pluralism 36:
91–112.
Jolly, J., ed. 1880. The Institutes of Vishnu. Oxford: Clarendon.
Jolly, J., ed. 1889. The Minor Law Books, Part 1. Oxford: Clarendon.
Kameri-Mbote, P. 1995. The Law of Succession in Kenya: Gender Perspectives in Property
Management and Control. Nairobi: Women & Law in East Africa. International Environmental Law Research Centre.
LaFerrara, E. 2007. “Descent Rules and Strategic Transfers: Evidence from Matrilineal
Groups in Ghana.” Journal of Development Economics 83: 280–301.
Lwanga-Ntale, C. 2003. “Chronic Poverty and Disability in Uganda.” Paper presented at the
‘Staying Poor: Chronic Poverty and Development Policy’ conference, Manchester, April
7–9.
Mbatiah, S. 2010. “Kenya: Custom Law Trumps New Laws Covering Women’s Land
Rights.” Rome: Inter Press Service, November 23, p. 1.
Mehrotra, N. 2004. “Women, Disability and Social Support in Rural Haryana.” Economic
and Political Weekly 39 (52): 5640–5644.
Meinzen-Dick, R., and R. Pradhan. 2002. “Legal Pluralism and Dynamic Property Rights.”
CAPRi Working Paper 22. International Food Policy Research Institute.
Metzler, I. 2011. “Disability in the Middle Ages: Impairment at the Intersection of Historical
Inquiry and Disability Studies.” History Compass 9 (1): 45–60.
Miles, M. 1999. “Some Historical Responses to Disability in South Asia and Reflections on
Service Provision; Focus on Mental Retardation in India, Pakistan and Bangladesh and
Some Consideration of Blindness.” PhD diss., University of Birmingham.
Miles, M. 2002. “Some Historical Texts on Disability in the Classical Muslim World.” Journal of Religion, Disability & Health 6 (2–3): 77–88.
Miles, M. 2008. Disability and Deafness in the Middle East. Annotated Bibliography. New
York: Center for International Rehabilitation Research Information and Exchange. http://
cirrie.buffalo.edu/bibliography/mideast/.
Mitra, S., A. Posarac, and B. Vick. 2011. “Disability and Poverty in Developing Countries:
A Snapshot from the World Health Survey.” Social Protection Discussion Paper 1109.
World Bank.
Müller, M., ed. 1882. Pahlavi Texts, Part II. Sacred Books of the East, Vol 18. Oxford: Clarendon.
Mwenda, K., F. Mumba, and J. Mvula-Mwenda. 2005. “Property-grabbing under African
Customary Law: Repugnant to Natural Justice, Equity, and Good Conscience, yet a Troubling Reality.” George Washington International Law Review 37: 949–968.
Nauck, B. 2010. “Intergenerational Relationships and Female Inheritance Expectations: Comparative Results from Eight Societies in Asia, Europe, and North America.” Journal of
Cross-Cultural Psychology 41 (5–6): 690–705.
Parnes, P., D. Cameron, N. Christie, L. Cockburn, G. Hashemi, and K. Yoshida. 2009. “Disability in Low-income Countries: Issues and Implications.” Disability and Rehabilitation
31 (14): 1170–1180.
Rahman, A., and P. Ahmed. 1993. “Women with Disabilities in Bangladesh.” Canadian
Woman Studies 13 (4): 47–48.
Schlegel, A., and R. Eloul. 1988. “Marriage Transactions: Labor, Property, Status.” American
Anthropologist 90 (2): 291–309.
Sen, A. 2009. The Idea of Justice. New York: Penguin Group.
Sivaramayya, B. 1997. “Of Daughters, Sons & Widows: Discrimination in Inheritance Law.”
Manushi 100: 27–32.
Sultana, Z. 2010. “Agony of Persons with Disability: A Comparative Study of Bangladesh.”
Journal of Politics and Law 3 (2): 212–221.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
1568
N.E. Groce et al.
Talle, A. 1995. “A Child is a Child: Disability and Equality among the Kenya Maasai.” In
Disability and Culture, edited by B. Ingstad and S. Whyte, 56–72. Berkeley, CA: University of California Press.
Tambiah, S., M. Goheen, A. Gottlieb, J. Guyer, E. Olson, C. Piot, K. Van DerVeen, and T.
Vuyk. 1989. “Bridewealth and Dowry Revisited: The Position of Women in Sub-Saharan
Africa and North India.” Current Anthropology 30 (4): 413–435.
United Nations. 1979. Convention on the Elimination of all forms of Discrimination against
Women. New York: UN.
United Nations. 2006. Convention on the Rights of Persons with Disabilities. New York:
UN.
United Nations. 2011. Disability and the Millennium Development Goals: A Review of the
MDG Process and Strategies. New York: UN.
WHO/United Nations Population Fund. 2009. Guidance Note: Promoting Sexual and Reproductive Health for Persons with Disabilities. Geneva: WHO.
WHO/World Bank. 2011. World Report on Disability. Geneva: WHO.
Whyte, S., and B. Ingstad. 1995. “Disability and Culture: An Overview.” In Disability and
Culture, edited by B. Ingstad and S. Whyte, 77–93. Berkeley, CA: University of California Press.
Yeo, R. 2001. “Chronic Poverty and Disability.” Working Paper 4. Manchester: Chronic Poverty Research Centre, University of Manchester.
On: 17 November 2014, At: 21:19
Publisher: Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered
office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
Disability & Society
Publication details, including instructions for authors and
subscription information:
http://www.tandfonline.com/loi/cdso20
Inheritance, poverty, and disability
a
b
Nora Ellen Groce , Jillian London & Michael Ashley Stein
c
a
Leonard Cheshire Disability and Inclusive Development Centre,
Department of Epidemiology and Public Health, University College
London, London, UK
b
Havard Law School, Cambridge, MA, USA
c
Harvard Law Project on Disability, Harvard Law School,
Cambridge, MA, USA
Published online: 14 Nov 2014.
To cite this article: Nora Ellen Groce, Jillian London & Michael Ashley Stein (2014) Inheritance,
poverty, and disability, Disability & Society, 29:10, 1554-1568, DOI: 10.1080/09687599.2014.969831
To link to this article: http://dx.doi.org/10.1080/09687599.2014.969831
PLEASE SCROLL DOWN FOR ARTICLE
Taylor & Francis makes every effort to ensure the accuracy of all the information (the
“Content”) contained in the publications on our platform. Taylor & Francis, our agents,
and our licensors make no representations or warranties whatsoever as to the accuracy,
completeness, or suitability for any purpose of the Content. Versions of published
Taylor & Francis and Routledge Open articles and Taylor & Francis and Routledge Open
Select articles posted to institutional or subject repositories or any other third-party
website are without warranty from Taylor & Francis of any kind, either expressed
or implied, including, but not limited to, warranties of merchantability, fitness for a
particular purpose, or non-infringement. Any opinions and views expressed in this article
are the opinions and views of the authors, and are not the views of or endorsed by
Taylor & Francis. The accuracy of the Content should not be relied upon and should be
independently verified with primary sources of information. Taylor & Francis shall not be
liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages,
and other liabilities whatsoever or howsoever caused arising directly or indirectly in
connection with, in relation to or arising out of the use of the Content.
This article may be used for research, teaching, and private study purposes. Terms &
Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions
Downloaded by [1.9.46.41] at 21:19 17 November 2014
It is essential that you check the license status of any given Open and Open
Select article to confirm conditions of access and use.
Disability & Society, 2014
Vol. 29, No. 10, 1554–1568, http://dx.doi.org/10.1080/09687599.2014.969831
Inheritance, poverty, and disability
Nora Ellen Grocea*, Jillian Londonb and Michael Ashley Steinc
a
Leonard Cheshire Disability and Inclusive Development Centre, Department of
Epidemiology and Public Health, University College London, London, UK; bHavard Law
School, Cambridge, MA, USA; cHarvard Law Project on Disability, Harvard Law School,
Cambridge, MA, USA
Downloaded by [1.9.46.41] at 21:19 17 November 2014
(Received 16 September 2013; final version received 19 September 2014)
Inheritance is a significant means of transferring wealth from one generation to
the next, and therefore increasingly attracts attention from researchers and policy-makers working on intergenerational and multidimensional poverty. However, until now disabled persons have been overlooked in these discussions. This
oversight is particularly unfortunate because, as a group, the estimated one billion people with disabilities (some 15% of the world’s population) are among
the poorest and most marginalized of the global population. Over the past decade, a small but growing literature has examined the recursive connections
between poverty and disability throughout the developing world. In this paper,
we argue that disabled individuals are routinely denied inheritance rights in
many low-income and middle-income countries, and that this is a significant and
largely unrecognized contributor to their indigence. The denial of inheritance is
both a social justice issue and a practice that can no longer be overlooked if
disabled persons are to be brought into the development mainstream.
Keywords: inheritance; disability; poverty; international development; disabled
women; dowry; bridewealth
Points of interest
The link between disability, poverty, and inheritance is an area that has as yet
been wholly unexplored.
Inheritance rights have been given passing mention by a handful of disability
and development studies and reports, but there has been little research that
specifically focuses on inheritance practices and disability.
Making the legal systems – traditional and formal – accessible to disabled persons is crucial to ensuring they can effectively assert their claims to inheritance.
Disabled People’s Organisations and mainstream development organisations
must consider inheritance rights of disabled people if poverty among persons
with disabilities is to be realistically addressed.
Disabled women are at increased risk of being denied inheritance rights and this
is a contributing factor to their increased risk of greater poverty.
The most important finding from this research is the need to further explore the
*Corresponding author. Email: [email protected]
© 2014 The Author(s). Published by Taylor & Francis.
This is an Open Access article. Non-commercial re-use, distribution, and reproduction in any medium, provided the original
work is properly attributed, cited, and is not altered, transformed, or built upon in any way, is permitted. The moral rights of
the named author(s) have been asserted.
Disability & Society
1555
Downloaded by [1.9.46.41] at 21:19 17 November 2014
extent and patterns by which persons with disabilities are being denied their
right to inherit through formal, customary, and informal practices.
Introduction
Persons with disabilities are among the world’s poorest and most marginalized individuals. They face stigma, prejudice, and social isolation, and often lack the education, social support networks, and legal right to appeal injustices at the family,
community, or national level (Department for International Development 2000;
World Health Organization [WHO]/World Bank 2011). Over the past decade, a
small but growing literature has begun to examine links between poverty and disability (Groce et al. 2011; Parnes et al. 2009; Yeo 2001). These links are of note not
only because they are strong, but also because over one billion people worldwide
(15% of the global population) live with disability and one in four households has a
disabled member (WHO/World Bank 2011).
A major catalyst for increasing attention is the UN Convention on the Rights of
Persons with Disabilities (CRPD), which in the Preamble, Article 28, and Article 38
specifically addresses poverty reduction and establishes the equal inclusion of disabled persons in all development and global health efforts as a right (United Nations
2006). Article 12 specifically cites the right to own and inherit property and ensures
that disabled persons are not arbitrarily deprived of their property. The CRPD in turn
has led to new initiatives to incorporate people with disabilities into current and
future development efforts (United Nations 2011; also UN High Level Meetings in
2014). UN agencies, and bilateral and multilateral donor agencies increasingly recognize the necessity of including disability issues in mainstream poverty reduction
efforts (International Development Committee 2014).
Issues such as social inclusion and equity, access to education, employment, microfinance, and social protection have been examined as important components in
understanding cycles of poverty among disabled persons (Braithwaite and Mont
2010; Yeo 2001). This research increasingly shows that the issue of poverty among
disabled persons is more complex and nuanced than originally thought (Barron and
Ncube 2010; Groce et al. 2011; Sen 2009).
However, little attention has been directed to the structural nature of trans-generational poverty, nor the manner in which access to family and household assets
affects individuals with disabilities over the course of their lifetimes. Strikingly little
is known about inheritance rights for disabled persons in low-income and middleincome countries. Almost wholly unaddressed in the disability literatures, this is also
overlooked in the development and social justice literatures. This lack of attention is
perhaps understandable: only recently have inheritance practices, particularly as they
relate to women, become part of the global discourse on poverty and development,
and much remains poorly understood (Cooper 2010a, 2010b; Doss et al. 2011). Still
largely unexplored and beyond the scope of this paper are yet broader questions
about how inheritance drives issues related to continuing inequities in access to
resources framed by gender, class and ethnicity, rural verses urban residence and
high verses low-income and middle-income countries across the generations.
Researchers of disability and poverty in low-income and middle-income countries routinely hear anecdotes about how disabled persons are passed over when
1556
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
land, property, or money is passed down within families. Take, for example, the
38 year-old Nigerian woman disabled by polio who had worked side by side with
her non-disabled husband for 18 years establishing a small shop selling tobacco,
bananas, and lottery tickets. Within a week of her husband’s death, his brother, with
the backing of her husband’s own parents, had taken the shop and thrown her and
her three children out on the streets, commenting that his brother should not have
‘married a cripple’ in the first place.1 In Tanzania, a deaf son found that while he
and each of his six siblings had been left one-sixteenth of an acre by his father, his
siblings had decided that he ‘did not need’ land because he ‘could beg to earn the
same amount’. A lifelong farmer, he now lives on the streets of Dar es Salaam
washing cars and asking for hand-outs.
This article reviews what is and is not known about inheritance and disability
and discusses why this is an important – and currently missing component – in
efforts to understand and sever the links between poverty and disability.
Methodology
We began with a comprehensive desk review identifying existing evidence on inheritance, disability, and poverty, searching the following social science, international
development, and legal databases:
Abstracts in Anthropology
Google Scholar
EconLit
Family and Society Studies
IBBS
Index of Foreign Legal Periodicals
JSTOR
JSTOR Anthropology
Legal Journals Index
PubMed
PsychInfo
SSCI
Web of Science
Women’s Studies International
Our searches included combinations of the terms ‘disabled persons’, ‘disability’,
‘handicap’, ‘inheritance’, ‘comparative inheritance’, ‘succession’, ‘poverty’, ‘customary law’, and ‘discrimination’. As we were interested in multiple ways in which
property and assets are transferred, our search also included ‘dowry’ and ‘bridewealth’. Because gender often compounds disability issues, the terms ‘gender’ and
‘women’ were also searched. We also conducted a general Google search of disability and inheritance, and searched Nexis UK for websites, newspapers, case law, and
non-peer-reviewed journal articles and books. Finally, all major disability journals
were searched for these terms.
Because we focused on disability and poverty in low-income and middle-income
countries, results that focused on disability and inheritance in the developed world
were excluded, although we hope to return to this in future.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1557
Findings
Overview
Inheritance is a critical means of transferring wealth between generations. It includes
the transfer of property and other assets from one’s ancestors at various points in the
lifecycle: birth, death, marriage (often involving dowry or bridewealth), and retirement from work (Cooper 2010a). Inheritance patterns are connected to a society’s
kinship organization, social structure, and ideas about freedom, wealth, and equality
(Cooper 2010a; Doss et al. 2011; Hacker 2010; La Ferrara 2007; Sen 2009). Thus,
inheritance is considered both an economic and a social justice issue. Inequity in the
distribution of inheritance often reflects existing social inequities, leaving those
denied equal inheritance not only poorer than other family members or destitute, but
also with fewer rights to decision-making within the family and community (Cooper
2010a).
Inheritance can be either testate via a will or intestate when no will exists and
property devolves according to a society’s governing inheritance laws. Inheritance
regimes vary widely, and in the developing world often involve interplay between
national and customary law. A state can affect inheritance practices by limiting testamentary freedom (e.g. the amount of property an individual is allowed) and through
intestate inheritance laws that establish who can inherit property in the absence of a
will (Deere and Doss 2006). A state can also affect inheritance practices by determining whether or not to respect the customary laws of ethnic or minority communities living within its borders.
Inheritance regimes are either bilineal (property inherited through male and
female lines) or unilineal (through only the male or female line) (Cooper 2010a;
Hacker 2010; La Ferrara 2011; Nauck 2010). Much of the developed world has bilineal inheritance, while most of the developing world maintains unilineal inheritance systems. Two unilineal forms dominate. In matrilineal systems, property
devolves along the mother’s ancestral line so that a man’s heirs are his sister’s children. In patrilineal systems, property devolves along the father’s ancestral line, usually to a man’s siblings and/or children (Cooper 2010a; Hacker 2010; La Ferrara
2011; Nauck 2010).
Whether a community has a patrilineal or matrilineal inheritance system is generally linked to whether their wider kinship system is matrilineal or patrilineal. However, as Cooper (2010a) notes, inheritance practices do not always follow matrilineal
or patrilineal patterns, since inheritance decisions are often made as a result of
‘unique personal relationships’ whereby individuals give land and other assets to
someone close to them who is not within the society’s traditional line of descent.
This can be achieved through inter vivos transfers (where individuals transfer property to an heir during their lifetime) or through a will (although the will is not
always followed by family and community members) (Cooper 2010a; Hacker 2010;
La Ferrara 2011; Nauck 2010).
Religion plays a significant role. Under Islamic law, which governs practices in
modern Muslim states, much of India, and many sub-Saharan African tribal groups,
only one-third of an estate can be willed freely, with the remainder divided between
the deceased’s children and other heirs (Deere and Doss 2006). Daughters are entitled to one-half of the sons’ share; widows are entitled to one-half of what widowers
receive (Hacker 2010). In Hindu inheritance law, which governs most of India and
is present in much of sub-Saharan Africa, two schools exist. Under the Dayabhaga
1558
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
School, a man can will all of his property as he pleases. Under the Mitakshara
School, a man’s property is divided into personal property and joint ancestral property (‘coparceny’). While a man may will his personal property as he sees fit, he is
not allowed to will joint ancestral property, which belongs equally to himself and
his sons at birth. Daughters do not inherit ancestral property (Sivaramayya 1997).
While the Hindu Succession Act of 1956 gives Indian daughters and sons equal
rights to personal property, it did not affect distribution of ancestral property. Consequently, there is still unequal inheritance between sons and daughters in Mitakshara
Hindu Law (Carroll 1991).
There thus exists a wide variety of inheritance practices that affect what property
can be distributed and to whom. As discussed below, these practices often involve
the interplay of religious, state, community, and family laws and traditions, as well
as personal decisions. Any study of inheritance among disabled persons must keep
in mind the complexity of inheritance systems and the multitude of actors involved.
Inheritance and poverty
Linkages between inheritance and poverty have received increasing attention within
development, particularly in relation to women’s poverty and empowerment
(Agarwal 1994; Bird 2007; Cooper 2010a, 2010b; Deere and Doss 2006; Doss et al.
2011). In her comprehensive review of inheritance and inter-generational poverty in
sub-Saharan Africa, Cooper notes that:
inheritance is a major means for the transfer, or exclusion from the transfer, of adults’
accumulated physical capital. As such, it can have positive or negative effects on poverty status over the life course. Inheritance events can either be boons of property accumulation or they can strip people of their previous security of access to assets. (Cooper
2010a)
Inheritance can provide younger generations with economic independence. Control
over assets can also increase an individual’s productive capacity and help movement
out of poverty (Doss et al. 2011; Sen 2009). Conversely, recent African studies show
that lack of inheritance ‘exacerbates vulnerability’ to chronic, inter-generational poverty (Cooper 2010a).
In the developing world, inheritance is among the rare means for obtaining property and other economic assets. Furthermore, the right to dispose of property gives
individuals a continuing voice in family and community matters, even when ill or
elderly. Those who are denied inheritance, even where only small amounts of property or cash exist, may face destitution. Such ‘property’ can be quite limited – a
bicycle, sewing machine, or cook stove needed to continue self-employment.
Even if assets can be obtained through alternative means, inheritance is often the
major method of obtaining rights to land (Cooper 2010a). This is important because
land is an especially valuable form of property due to its ‘economic, political and
symbolic significance’ (Agarwal 1994, 1456). Control over land allows one to be
self-sustaining, to obtain further wealth through crops, and able to be sold or leased
in times of need. Gender literature evidence indicates increased access to land
improves women’s welfare, productivity, equality, and empowerment (Agarwal
1994). Land also provides a sense of identity, belonging, status, and the right to a
political voice within the community. Land is viewed by many in South Asia as having ‘durability and permanence which no other asset possesses’ (Agarwal 1994).
Disability & Society
1559
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Land is equally important in sub-Saharan Africa, providing ‘food, shelter and economic activities’; a ‘primary source of wealth, social status, and power’ and facilitating access to other critical resources such as water, sanitation, and electricity
(Cooper 2010a).
Inheritance and disability
Given the links between inheritance and poverty, it is important to understand
the connection between disabled persons and inheritance, particularly the wellestablished links between disability and poverty (Department for International
Development 2000; Groce et al. 2011; Mitra, Posarac, and Vick 2011; Parnes et al.
2009; Sen 2009).
Our desk study identified 90 publications in 61 journals, books, websites, and
newspapers for review based on attention to some aspects of inheritance, poverty,
and/or disability. Of these, 42 were selected for in-depth review based on abstracts
and introductions. Notably, we were unable to identify a single study that focused
specifically on inheritance rights and disabled persons in the developing world.
However, enough material was located to conclude that, around the world, disabled
persons are often denied the same inheritance rights enjoyed by others.
Evidence of exclusion of disabled persons from inheritance appears throughout
history – from Roman law it was adopted throughout Europe in the Middle Ages
(Metzler 2011). For example, in the Sachsenspiegel book, containing the legal code
from Medieval Germany, ‘people born “dumb, blind, or lacking hand or foot” could
not inherit under feudal law (Lehnsrecht) but could do so under territorial law
(Landrecht)’ (Dobozy 1999). Buckingham, in her history of disability in India, notes
that in pre-modern India, disabled persons were denied inheritance in the higher levels of Hindu caste society. A dharmasastric text from the fourth century AD ‘listed
“a madman, an idiot, one born blind, and he who is afflicted by an incurable disease” as people who were rendered unable to inherit’ because they were thought
incapable of performing required family rituals (Buckingham 2011). Groce (1985)
cites additional examples of denial of inheritance or primogenitor for deaf persons
in Medieval Europe.
Miles (2002) finds restrictions to inheritance of property in numerous historical
Asian texts. For example, Al-Marghinani’s twelfth-century scholarly commentary on
Islam, the Hedaya, still used among South Asian Muslims, notes that in the Qur’an
(Surah 4, verses 5–6) intellectually disabled persons are prescribed guardianship and
not allowed to control their own property because this would go against their best
interests (Al-Marghinani 1975). Not all Islamic scholars agreed with these prohibitions, however. For example, the legal scholar Abu Hanifa advocated withholding
property of the person with intellectual disabilities only until age 25, arguing that
denying access after this would be inhumane (Al-Marghinani 1975).
Ancient Hindu Law also mentions property and inheritance rights of disabled
persons. They were excluded from inheritance in the eleventh-century Mitakshara
(Miles 1999), and Miles further lists Hindu law books where disability and inheritance were mentioned (Miles 2008). For example, the Minor Law Books Narada
(fourth/fifth century CE) notes exclusion of disabled persons from inheritance but
asserts that they must be maintained and their sons must be allowed to remain inheritors (Jolly 1889). Similar provisions excluding disabled persons from inheritance
but requiring that they be maintained and/or that their sons be allowed to inherit are
Downloaded by [1.9.46.41] at 21:19 17 November 2014
1560
N.E. Groce et al.
found in other texts – for example, Institutes of Vishnu, XV (Jolly 1880, 38–34);
MANU, IX (Hopkins 1995, 201–202); Guatama, XXVIII (Bühler 1897, 43–44);
and Baudhayana, I.2.3 and I.2.4 (Bühler 1882). Interestingly, Miles (2008 citing
Muller 1882) notes that Part II of the ancient Persian Pahlavi Texts asserts that a son
or his wife ‘who is blind in both eyes, or crippled in both feet, or maimed in both
his hands’ is entitled to twice the share of a non-disabled son.
In addition to historical references, a handful of recent articles in the disability and
poverty literature mention inheritance. For example, Yeo asserts that disabled persons
are low priority or excluded from family inheritances (Yeo 2001). Lwanga-Ntale
(2003) and Bird et al. (2004) note that Ugandan customary law prohibits disabled persons from inheriting land. Lwanga-Ntale quotes a group of disabled women, stating
‘a disabled person cannot inherit land. A brother’s child may even be preferred in
inheritance if he is not disabled’ (Lwanga-Ntale 2003, 7). Sultana (2010), studying
disability and the Bangladesh legal system, notes that the Lunacy Act 1912, still
enforced, allows persons with intellectual or mental disabilities to be declared incapable of managing their property; thus, Muslim families governed by this law often keep
disabled individuals from claiming their share of family property. Furthermore, the
Bangladeshi Hindu Inheritance (Removal of Disabilities) Act 1928, likewise still in
force, states that no person governed by Hindu Law with any disease, deformity, or
physical or mental defect may be excluded from their inheritance or share in joint
family property, except a person born ‘a lunatic or idiot’ (Sultana 2010).
This last point shows that exclusion from inheritance may depend on the type of
disability and the socio-cultural perceptions about that disability. Persons with intellectual or mental health disabilities, for example, may face greater exclusion because
they are considered incapable of looking after property. This may be particularly relevant in the societies, which place significant importance on communal ancestral
property. As Yeo notes, ‘where there are limited resources it may be seen as economically irresponsible to give an equal share of resources to a disabled child who
is perceived as unlikely to be able to provide for the family in the future’ (2001, 9).
Nor are such disability-specific concerns confined to communal inheritance. For
example, people who are deaf may have difficulty understanding and asserting their
claims when those around them are unable to speak sign language. Because few
courts in developing countries provide sign-language interpreters, poor deaf individuals are often unable to afford interpreters themselves.
Notably, while disabled men may have property rights, disabled women often do
not. Furthermore, given that all women in Nepal (disabled or not) are denied the
right to equal inheritance with men, the fact that many women with disabilities do
not marry leaves them without any access to property rights even through husbands
(Dhungana 2006).
Interestingly, evidence does not support the conclusion that all societies follow
discriminatory inheritance practices. In her study on disability among the Kenyan
Massai, for example, Talle (1995) notes that the Massai moral code requires disabled
children to be treated equally, including in marriage and inheritance of their parents’
livestock. Given the lack of research into inheritance and disability among ethnic
and minority communities, other groups may share similar ideas to the Massai,
although no similar reports were found in existing literature.
Our review clearly demonstrates a dearth of research on this subject – aside from
anecdotal references, no accounts were located on gender differences or how persons
with different types of disabilities fare under inheritance practices. The few studies
Disability & Society
1561
Downloaded by [1.9.46.41] at 21:19 17 November 2014
where the links between disability and inheritance are mentioned note the association without providing in-depth discussion of why this occurs or what the lived
experiences are for disabled people thus excluded.
Dowry, bridewealth, and disability
In addition to inheritance that may be received or denied upon a family member’s
death, another important form of ‘inheritance’ occurs during marriage.
The two major forms of wealth transfer during marriage are dowry and bridewealth. As Cooper (2010a) notes, dowry is prevalent across Asia, while bridewealth
is common in sub-Saharan Africa. In the case of dowry, property, money, and/or
other assets are given by the bride’s family to the groom or his family. In the case of
bridewealth, property, money, and/or other assets are given by the groom or his family to the bride’s family (Cooper 2010a).
Some consider dowry a form of pre-mortem inheritance (Goody 1976; Nauck
2010). In many cases, dowry is the only inheritance a woman receives, as she is
ineligible to inherit land and assets through customary or formal law (Carroll 1991;
Schlegel and Eloul 1988). In other cases, dowry forms part of a woman’s inheritance, with the balance transferred on the death of her father and/or mother (Schlegel
and Eloul 1988).
Significantly, however, although many disabled men and women do have relationships, stigma, prejudice, and customary laws make it less likely they will formalize these relationships through marriage (WHO/UNFPA 2009). As Parnes et al.
(2009, 175) note: ‘unlike other women, [women with disabilities] have little chance
to enter a marriage or inherit property that can offer a form of economic security’.
In Nepal, for instance, a society where marriage is the norm for women, 80% of disabled women are unmarried (Dhungana 2006). This lack of formal marriage compounds links between poverty and disability through lack of dowry, bridewealth, or
right to inherit property or resources generated jointly over the course of the relationship.
Even marriage does not ensure equitable treatment for disabled persons. Often
families of disabled persons will be asked to pay a higher dowry or bridewealth for
a marriage partner. Ghai explains that in India, because marriage involves the gifting
of a woman by her father to the groom and his family, and because it is anticipated
that that gift will be ‘perfect’, the family of a disabled girl must often pay a higher
dowry to compensate for the daughter’s so-called imperfections (Ghai 2002). Both
Mehotra (2004) studying disabled women in India and Hosain et al. (2002) in their
disability studies in Bangladesh report disabled girls’ families paying heavy dowries
to secure a marriage. A study of persons with physical disabilities in Dakar provided
similar evidence for bridewealth – obtaining a wife for a disabled son required a
higher than normal bridewealth (Whyte and Ingstad 1995).
Interestingly, although higher bridewealth or dowry can take years to accumulate
there is little study of whether families were willing to pay such fees in order to
marry off their disabled child. The inability to pay a higher dowry or bridewealth
may mean an isolated and lonely adulthood for disabled individuals or permanent
reliance on birth families.
Even if a higher dowry or bridewealth is possible, finding a spouse can be difficult. Disabled women have a more difficult time than disabled men in obtaining
marriage partners (Habib 1995; Rahman and Ahmed 1993; WHO/UNFPA 2009). In
1562
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
some societies, disabled women unable to obtain marriage partners may become
‘part’ of their female family member’s dowry. In the course of fieldwork, one coauthor (N.E.G.) was told by a disabled informant that she herself had been ‘given’
as part of her non-disabled sister’s dowry to her sister’s husband’s family. This family in turn married her to an elderly uncle 50 years her senior to serve as his nurse.
Where polygamous marriages exist it is also common for disabled women to
become junior wives, brought into the household to do housework and childcare
(Groce 1997).
Thus, for women with disabilities an inability to marry or to be the ‘first’ wife
may keep them from obtaining any form of wealth. Furthermore, most or all of a
dowry may not be given to the bride but instead to the groom and his family
(Tambiah et al. 1989). It is thus debatable whether dowry should be considered a form
of inheritance that could assist disabled women in obtaining economic autonomy.
Legal pluralism
Another significant issue is legal pluralism: ‘the coexistence and interaction between
multiple legal orders such as state, customary, religion, project and local laws, all of
which provide bases for claiming property rights’ (Meinzen-Dick and Pradhan 2002, i).
Overlapping systems regarding inheritance often contradict and compete with one
another at the individual and community levels. National laws may not reflect what
occurs in practice. It is not unusual for different parties to appeal to different legal
systems to assert their inheritance claim for the same property (Irianto 2004).
In many countries, statutory law recognizes the primacy of customary law in
inheritance, an issue often considered a matter of family law. This can be disconcerting for minority groups whose statutory rights to equality before the law can be
undermined by customary practices.
Unfortunately, there is little written on customary inheritance laws in relation to
disabled persons. As with the inheritance and development literature in general,
much current research on relationships between customary and statutory inheritance
law relates to women. Cooper observes, for instance, that Botswana, Lesotho,
Ghana, Kenya, Zambia, and Zimbabwe exempt inheritance matters from the genderbased non-discrimination provisions in national laws (Cooper 2010a).
Irianto (2004), studying interactions between state and customary law in Indonesian inheritance court cases, notes that formal Indonesian regulation makes no mention of women having any title to inheritance. This has a devastating impact on the
inheritance rights of women. Customary law in both sub-Saharan Africa and Southeast Asia often discriminates against women, including disabled women, by preventing them from inheriting – or inheriting equally with male family members – from
parents or spouses. Further, much customary law is uncodified, flexible, and changing (Bushbeck 2006; Kameri-Mbote 1995). Formal wills are often unknown or
ignored. For example, in African customary law, inheritance matters will almost
always be intestate (Mwenda, Mumba, and Mvula-Mwenda 2005). These factors
make it relatively easy for family members and chief elders to manipulate customary
laws to keep or take property from women and other vulnerable individuals.
Although some countries now guarantee equal inheritance rights to all by statute,
discriminatory customary law still dominates in practice (Cooper 2010a; Mbatiah
2010; Mwenda, Mumba, and Mvula-Mwenda 2005). Additionally, property-grabbing by family members, although outlawed by the State, is common among
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1563
widows and orphans; disabled persons are also routinely victims and likewise lack
the ability to challenge these practices in courts. Individuals meant to enforce the
law often fail to do so as they frequently benefit from the property-grabbing themselves (Mwenda Mumba, and Mvula-Mwenda 2005).
Vulnerable individuals may find it extremely difficult bypassing family and community leaders to assert their rights within national legal systems. Some are unaware
of their rights. Others may fear retaliation or alienation from family and community
if they resort to non-community-based legal systems. Many women who have questioned traditional inheritance systems or turned to state courts have been threatened,
beaten and face alienation from family and community (Agarwal 1994; Mwenda,
Mumba, and Mvula-Mwenda 2005). Similar alienation and violence might also be
of concern for disabled persons who frequently depend on family for activities of
daily living, and already are at increased risk of violence.
Even if individuals are aware of statutory laws, many prefer using customary
systems because these are more familiar and less expensive (Cooper 2010b). Such
local legal processes may be staffed by a justice who ‘lack[s] strong legal training
and who relies more on conventional wisdom than on rules of evidence and substantive law’ (Mwenda, Mumba, and Mvula-Mwenda 2005).
Finally, even if individuals bring cases before state courts, these courts may still
apply customary law and ‘take personal relations, specific circumstances and backgrounds … into account, not only strict legal rules’ (Bushbeck 2006). An additional
difficulty is that statutory law generally does not recognize polygamous marriages,
leaving women who are second or third wives without any recourse to inheritance
rights. This is particularly relevant to disabled women because, as noted above, they
are more likely to be junior wives.
In communities where there is strong stigma against disability or where disabled
persons are not considered responsible adults, decisions can be made by family,
community leaders, or local justices who believe they are acting in these individuals’
best interests. Also largely unexplored, but the subject of many anecdotes and worth
investigation, are cases where issues of inheritance affect decisions to institutionalize
disabled relatives or threat to do so are used as leverage to gain compliance.
Discussion
Although the literature linking inheritance, poverty, and disability is strikingly thin,
the issues appear to be similar to those already identified between gender and inheritance and we can therefore extrapolate from this existing literature to anticipate difficulties disabled persons face.
On the individual level, many disabled persons are significantly less likely to
obtain an education, and therefore not understand their inheritance rights or how to
access the legal system to assert these rights. Thus, there is an unfortunate paradox
in which they lack education, and resources to assert inheritance rights, while that
very inheritance could enable them to access needed education and resources.
Even where the family and community have the disabled person’s best interests
in mind, they may believe them unable to adequately manage property. Much like
the phenomenon of women relinquishing inheritance rights after being ‘convinced’
that it would be best for all parties (Hacker 2010), it seems likely that many disabled
individuals are pressed to similarly relinquish inheritance rights.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
1564
N.E. Groce et al.
Dependency on others for a place to live, care, and social inclusion may restrict
an individual’s options to object or to question inheritance practices. Disabled persons may also relinquish inheritance rights, believing they are a burden and this is a
way to ‘repay’ others for their care and concern.
Customary and traditional legal systems and practices limit the right of disabled
persons to inherit property and the right to appeal decisions made by other members
of their families and communities regarding division of property. Legal pluralism
means that it is often difficult for disabled persons to know which legal system governs their inheritance rights and makes it relatively easy for families and communities
to ‘forum shop’ for a legal system to deny disabled persons their inheritance rights. In
many states, statutory law excludes customary inheritance practices from non-discrimination clauses, legitimating discriminatory practices. Even in states that do not
create exceptions in national laws for customary inheritance practices, lack of enforcement mechanisms means that communities and families often ignore national law.
An additional barrier at the structural level is that lawyers and judges often lack
knowledge of the recent legal changes (such as the CRPD) or applicable laws that
protect inheritance of disabled persons. Traditional stigma surrounding disability
may make lawyers and judges unlikely to care about supporting inheritance rights
for disabled people.
Furthermore, inaccessible court rooms and legal offices – lacking sign language
interpreters or ramps, for example – provide additional structural barriers. Disabled
persons from rural communities are at even greater disadvantage because of distances to lawyers, judges, and courts linked to national legal systems makes them
even more reliant on the local, customary legal mechanisms.
While it can be argued that the CRPD overrides customary legal systems, this
will not necessarily quickly extend to changes at local or individual levels. The Convention on Elimination of All Forms of Discrimination against Women, adopted by
the United Nations in 1979, has been ratified by 187 countries, yet women still face
discrimination worldwide.
An important consideration for inheritance and disability is the unique situation
of families. While disabled persons must not be discriminated against, legitimate
concerns of families must also be recognized. For instance, someone with an intellectual disability might require support to manage money and assets; similarly,
someone with serious mental health problems might need facilitation to realistically
decide how to spend their inheritance. If an individual needs inheritance for medical
or psychological care or support over a lifetime and is unable to make appropriate
decisions, allowing unregulated control over inheritance could have potentially devastating consequences. Ways in which disabled persons can maintain inheritance
rights while taking into account that some might require help managing their inheritance will require careful consideration and discussion within and beyond the
disability community.
Conclusions
Denial of the right to inherit can deprive disabled persons of existing or anticipated
assets, driving them into poverty. For those already in poverty, inability to inherit is
often a final blow, moving many from poverty to destitution. Nevertheless, this desk
review finds the nature and extent to which inheritance is a contributor to poverty of
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1565
disabled persons is currently largely unrecognized, poorly understood, and largely
conjectural.
This lacuna is not unique to disability. Cooper (2010a), in one of the few comprehensive studies of inheritance and poverty in sub-Saharan Africa, also notes lack
of evidence-based research. Thus, perhaps our most important finding is the need to
further explore – through field studies, case law examination, and discussions with
disabled persons themselves – the extent to which disabled persons are being denied
their inherence rights through formal, customary, and informal practices, and the
implications that this has for their continuing poverty. Study is needed not only on
disability and inheritance in general, but also of barriers due to gender and issues
faced by persons with different types of disabilities.
A solid evidence base would allow identification of where interventions would
be most effective. There are, however, several that can be identified now.
First, countries that currently exempt inheritance from the non-discrimination
clauses of their statutory laws need to reform these laws to conform with the CRPD.
Because most people die intestate (Hacker 2010), reforming statutory law so that
disabled persons are automatically included in distribution of inherited family wealth
could have a profound effect. While reform of customary law is difficult given its
localized and generally uncodified nature, engagement with local leaders may lead
to improvement in customary inheritance practices.
Disabled persons themselves need education on their rights, as well as about
accessing the legal system to effectively assert these rights. Lawyers and judges also
need education about new laws so these can be effectively implemented. Education
within local communities will also be crucial, as family and community members
understand new laws and how these affect their testamentary freedom. Monitoring
by human rights organizations and disabled persons’ organizations is needed to
ensure that rights are upheld.
Additionally, making courts more accessible is crucial to ensuring claims to
inheritance. Providing sign-language interpreters, making courtrooms physically
accessible and providing access to lawyers for disabled persons in rural communities
are examples of how this can be achieved.
Finally, this paper presents a call to disability rights advocates to become
involved in and develop an expertise on inheritance both at the policy and practice
levels. Disabled people should be involved in discussions surrounding research into
inheritance rights, as well as programmes advocating change of laws and practices.
Most importantly, this should be at the forefront of the disability and development
agenda. An exploration into inheritance practices and laws as they relate to disabled
persons is crucial for reducing poverty, improving rights, and creating a more equal
and just system for all.
Acknowledgements
The authors gratefully acknowledge funding from UK Department for International Development through the Cross-Cutting Disability Research Programme to the Leonard Cheshire Disability and Inclusive Development Centre, UCL. They also thank Dr Michael Miles for
additional references and Ellie Cole for manuscript preparation.
Note
1. Anecdotes from research by co-authors (N.E.G., M.A.S.).
1566
N.E. Groce et al.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
References
Agarwal, B. 1994. “Gender and Command Over Property: A Critical Gap in Economic Analysis and Policy in South Asia.” World Development 22 (10): 1455–1478.
Al-Marghinani, B. 1975. The Hedaya. 2nd ed. Translated by C. Hamilton. Premier: Lahore.
Barron, R., and J. Ncube, eds. 2010. Poverty and Disability. London: Leonard Cheshire Disability.
Bird, K. 2007. “The Intergenerational Transmission of Poverty: An Overview.” Working
Paper 99. Overseas Development Institute and Chronic Poverty Research Centre.
Bird, K., N. Pratt, T. O’Neill, and V. Bolt. 2004. “Fracture Points in Social Policies for
Chronic Poverty Reduction.” Working Paper 47. Chronic Poverty Research Centre.
Braithwaite, J., and D. Mont. 2010. “Disability and Poverty: A Survey of World Bank Poverty Assessments and Implications”. SP Discussion Paper No. 0805. World Bank.
Buckingham, J. 2011. “Writing Histories of Disability in India: Strategies of Inclusion.” Disability & Society 26 (4): 419–431.
Bühler, G., ed. 1882. Sacred Laws of the Aryas, Part II. Oxford: Clarendon.
Bühler, G., ed. 1897. Sacred Laws of the Aryas, Part I. Oxford: Clarendon.
Bushbeck, K. 2006. “Customary Inheritance Law – Methodological Aspects of Research and
Main Features of Inheritance Traditions.” In Shade of New Leaves: Governance in Traditional Authority, edited by M. Hinz and H. Patemann, 231–246. Berlin: Lit Verlag.
Carroll, L. 1991. “Daughters’ Right of Inheritance in India: A Perspective on the Problem of
Dowry.” Modern Asian Studies 25 (4): 791–809.
Cooper, E. 2010a. “Inheritance and the Intergenerational Transmission of Poverty in SubSaharan Africa: Policy Considerations.” Working Paper 59. Chronic Poverty Research
Centre
Cooper, E. 2010b. “Women and Inheritance in Five Sub-Saharan African Countries: Opportunities and Challenges for Policy and Practice Change.” Paper presented at the ‘Ten Years
of War against Poverty’ conference, Manchester, September 8–10.
Deere, C., and C. Doss. 2006. “Gender and the Distribution of Wealth in Developing Countries.” Research Paper No. 2006/115. United Nations University World Institute for
Development Economics Research
Department for International Development. 2000. Disability, Poverty, and Development. London: DFID.
Dhungana, B. 2006. “Lives of Disabled Women in Nepal: Vulnerability without Support.”
Disability & Society 21 (2): 133–146.
Dobozy, M. 1999. The Saxon Mirror: A Sachsenspiegel of the Fourteenth Century. Philadelphia, PA: University of Pennsylvania Press.
Doss, C., M. Truong, G. Nabanoga, and J. Namaalwa. 2011. “Women, Marriage, and Asset
Inheritance in Uganda.” Working Paper 184. Chronic Poverty Research Centre.
Ghai, A. 2002. “Disabled Women: An Excluded Agenda of Indian Feminism.” Hypatia 17
(3): 49–66.
Goody, J. 1976. “Inheritance, Property and Women: Some Comparative Considerations.” In
Family and Inheritance: Rural Society in Western Europe, edited by J. Goody, J. Thirsk,
and E. Thompson, 1200–1800. Cambridge: Cambridge University.
Groce, N. 1985. Everyone Here Spoke Sign Language: Hereditary Deafness on Martha’s
Vineyard. Cambridge, MA: Harvard University Press.
Groce, N. 1997. “Women with Disability in the Developing World: Arenas for Policy Revision and Programmatic Change.” Journal of Disability Policy Studies 8 (1): 178–193.
Groce, N., M. Kett, R. Lang, and J. F. Trani. 2011. “Disability and Poverty: The Need for a
more Nuanced Understanding of Development Policy and Practice.” Third World Quarterly 32 (8): 1493–1513.
Habib, L. 1995. “Women and Disability Don’t Mix!’: Double Discrimination and Disabled
Women’s Rights.” Gender and Development 3 (2): 49–53.
Hacker, D. 2010. “The Gendered Dimensions of Inheritance: Empirical Food for Legal
Thought.” Journal of Empirical Legal Studies 7 (2): 322–354.
Hopkins, E., ed. 1995. The Ordinances of Manu Translated from Sanskrit. New Delhi: Munshiram Manoharlal.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
Disability & Society
1567
Hosain, G., D. Atkinson, and P. Underwood. 2002. “Impact of Disability on Quality of Life
of Rural Disabled People in Bangladesh.” Health, Population, and Nutrition 20 (4): 297–
305.
International Development Committee. 2014. Disability and Development: Eleventh Report
of Session 2013-14. London: House of Commons. Accessed May 7. http://www.publica
tions.parliament.uk/pa/cm201314/cmselect/cmintdev/947/947.pdf
Irianto, S. 2004. “Competition and Interaction between State Law and Customary Law in the
Court Room: A Study of Inheritance Cases in Indonesia.” Journal of Legal Pluralism 36:
91–112.
Jolly, J., ed. 1880. The Institutes of Vishnu. Oxford: Clarendon.
Jolly, J., ed. 1889. The Minor Law Books, Part 1. Oxford: Clarendon.
Kameri-Mbote, P. 1995. The Law of Succession in Kenya: Gender Perspectives in Property
Management and Control. Nairobi: Women & Law in East Africa. International Environmental Law Research Centre.
LaFerrara, E. 2007. “Descent Rules and Strategic Transfers: Evidence from Matrilineal
Groups in Ghana.” Journal of Development Economics 83: 280–301.
Lwanga-Ntale, C. 2003. “Chronic Poverty and Disability in Uganda.” Paper presented at the
‘Staying Poor: Chronic Poverty and Development Policy’ conference, Manchester, April
7–9.
Mbatiah, S. 2010. “Kenya: Custom Law Trumps New Laws Covering Women’s Land
Rights.” Rome: Inter Press Service, November 23, p. 1.
Mehrotra, N. 2004. “Women, Disability and Social Support in Rural Haryana.” Economic
and Political Weekly 39 (52): 5640–5644.
Meinzen-Dick, R., and R. Pradhan. 2002. “Legal Pluralism and Dynamic Property Rights.”
CAPRi Working Paper 22. International Food Policy Research Institute.
Metzler, I. 2011. “Disability in the Middle Ages: Impairment at the Intersection of Historical
Inquiry and Disability Studies.” History Compass 9 (1): 45–60.
Miles, M. 1999. “Some Historical Responses to Disability in South Asia and Reflections on
Service Provision; Focus on Mental Retardation in India, Pakistan and Bangladesh and
Some Consideration of Blindness.” PhD diss., University of Birmingham.
Miles, M. 2002. “Some Historical Texts on Disability in the Classical Muslim World.” Journal of Religion, Disability & Health 6 (2–3): 77–88.
Miles, M. 2008. Disability and Deafness in the Middle East. Annotated Bibliography. New
York: Center for International Rehabilitation Research Information and Exchange. http://
cirrie.buffalo.edu/bibliography/mideast/.
Mitra, S., A. Posarac, and B. Vick. 2011. “Disability and Poverty in Developing Countries:
A Snapshot from the World Health Survey.” Social Protection Discussion Paper 1109.
World Bank.
Müller, M., ed. 1882. Pahlavi Texts, Part II. Sacred Books of the East, Vol 18. Oxford: Clarendon.
Mwenda, K., F. Mumba, and J. Mvula-Mwenda. 2005. “Property-grabbing under African
Customary Law: Repugnant to Natural Justice, Equity, and Good Conscience, yet a Troubling Reality.” George Washington International Law Review 37: 949–968.
Nauck, B. 2010. “Intergenerational Relationships and Female Inheritance Expectations: Comparative Results from Eight Societies in Asia, Europe, and North America.” Journal of
Cross-Cultural Psychology 41 (5–6): 690–705.
Parnes, P., D. Cameron, N. Christie, L. Cockburn, G. Hashemi, and K. Yoshida. 2009. “Disability in Low-income Countries: Issues and Implications.” Disability and Rehabilitation
31 (14): 1170–1180.
Rahman, A., and P. Ahmed. 1993. “Women with Disabilities in Bangladesh.” Canadian
Woman Studies 13 (4): 47–48.
Schlegel, A., and R. Eloul. 1988. “Marriage Transactions: Labor, Property, Status.” American
Anthropologist 90 (2): 291–309.
Sen, A. 2009. The Idea of Justice. New York: Penguin Group.
Sivaramayya, B. 1997. “Of Daughters, Sons & Widows: Discrimination in Inheritance Law.”
Manushi 100: 27–32.
Sultana, Z. 2010. “Agony of Persons with Disability: A Comparative Study of Bangladesh.”
Journal of Politics and Law 3 (2): 212–221.
Downloaded by [1.9.46.41] at 21:19 17 November 2014
1568
N.E. Groce et al.
Talle, A. 1995. “A Child is a Child: Disability and Equality among the Kenya Maasai.” In
Disability and Culture, edited by B. Ingstad and S. Whyte, 56–72. Berkeley, CA: University of California Press.
Tambiah, S., M. Goheen, A. Gottlieb, J. Guyer, E. Olson, C. Piot, K. Van DerVeen, and T.
Vuyk. 1989. “Bridewealth and Dowry Revisited: The Position of Women in Sub-Saharan
Africa and North India.” Current Anthropology 30 (4): 413–435.
United Nations. 1979. Convention on the Elimination of all forms of Discrimination against
Women. New York: UN.
United Nations. 2006. Convention on the Rights of Persons with Disabilities. New York:
UN.
United Nations. 2011. Disability and the Millennium Development Goals: A Review of the
MDG Process and Strategies. New York: UN.
WHO/United Nations Population Fund. 2009. Guidance Note: Promoting Sexual and Reproductive Health for Persons with Disabilities. Geneva: WHO.
WHO/World Bank. 2011. World Report on Disability. Geneva: WHO.
Whyte, S., and B. Ingstad. 1995. “Disability and Culture: An Overview.” In Disability and
Culture, edited by B. Ingstad and S. Whyte, 77–93. Berkeley, CA: University of California Press.
Yeo, R. 2001. “Chronic Poverty and Disability.” Working Paper 4. Manchester: Chronic Poverty Research Centre, University of Manchester.
